Can the government take away my laptop?

U.S. Customs and Border Patrol agents can seize electronic devices coming into the country and hold them indefinitely.

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The United States v. Arnold

On July 17, 2005, Customs and Border Patrol agents at Los Angeles International Airport stopped a U.S. citizen named Michael Timothy Arnold for secondary questioning. Arnold had just arrived at the airport from the Philippines. During the questioning, an agent asked Arnold to turn on his laptop computer. Arnold complied, and the agent handed the laptop over to a coworker.

The second agent looked at Arnold's computer desktop and saw that two folders contained pictures. The agent opened the folders and viewed the photos. Before long, the agent began to suspect Arnold possessed child pornography. The agents seized the laptop and other equipment but let Arnold go.

Two weeks later, federal agents secured a warrant against Arnold based on the material found on Arnold's digital media. That included not only the laptop, but several CDs, a portable hard drive and a flash memory drive. Agents charged Arnold with possession and transportation of child pornography.

Arnold's lawyers filed a motion to suppress the evidence found by the agents. They claimed that the agents overstepped their authority by searching Arnold's electronic data. They argued that while it's almost second nature to expect agents to search for potential physical threats that could pose an immediate danger -- a bomb disguised as a laptop, for example -- actually searching the contents of the devices was another matter.

The district court agreed with Arnold's lawyers and suppressed the evidence. But the prosecution appealed the decision, and the case went to a higher court. That court reversed the district court's decision, saying that searches at the U.S. border, including customs, are exempt from the qualifications government agents must meet for searches elsewhere [source: United States v. Arnold].

Arnold's lawyers appealed that ruling, and the case moved to the 9th Circuit Court in San Francisco, California. In a 3-0 decision issued on April 21, 2008, the court ruled to uphold the previous court's decision to reverse the ruling [source: United States v. Arnold]. The court's decision means that in order to protect national security, federal agents can confiscate electronics without probable cause and search them for evidence of a crime.

While the U.S. Department of Homeland Security says it intends to use this policy to help protect the United States from terrorist attacks, the judgment itself says agents can look for evidence of any crime at all. That means agents can comb through files and look for anything that might be illegal. Electronic searches can take days, weeks or even months to complete. Agents can confiscate electronics for an indefinite length of time -- there's no way of knowing when, or if, the government will return a device to the owner.

A Different Kind of Search

Searching an electronic device for evidence of a crime means that you're looking at digital information rather than physical objects. Some people worry that the court's decision to support border searches without probable cause will lead to more intrusive policies. After all, if agents can look at the information on your machines when you cross the border, is it a stretch to say they might soon be allowed to monitor all international Internet traffic passing through the United States? The court has already established that it's the information, not the container, that counts as evidence. If the container doesn't matter, then where's the line dividing a search of a physical machine and monitoring Internet traffic?